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2023
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[2023] ZAGPPHC 270
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Malki's Investment Trust v Hashi and Others [2023] ZAGPPHC 270; 27673/2022 (6 April 2023)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 27673/2022
1.
REPORTABLE:
NO
/YES
2.
OF INTEREST TO OTHER JUDGES:
NO
/YES
3.
REVISED.
DATE:
06 APRIL 2023
In
the matter of:
THE
MALKI’S INVESTMENT TRUST
APPLICANT
and
ALI
HASHI
FIRST
RESPONDENT
DAVID
MOETI SECOND
RESPONDENT
THE
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
THIRD
RESPONDENT
RULING
ON APPLICATION FOR LEAVE TO APPEAL
A.
Introduction
1.
This is an opposed application for leave to
appeal the order made by this court on 6 March 2023, evicting the
respondents from the
applicant’s property. The respondents
represented themselves during the proceedings of 3 March. However,
they were represented
by counsel during the proceedings dealing with
their application for leave to appeal.
2.
The
respondents’ grounds of appeal are set out in their notice of
application for leave to appeal. I will briefly refer to
them.
For
now, it is necessary to record that the respondents contend that
their application is premised on both subsections (i) and (ii)
of
section 17
(1) (a) of the
Superior Courts Act 10 of 2013
[1]
.
I set out here below the respondents’ grounds:
B.
Reasonable prospects of success
3.
The respondents say that the court erred in
finding that they do not have a valid defence in law and in not
taking into account
the plight of the nine school children.
C.
Special reasons why leave to appeal must be granted
4.
The respondents further state that there
are special reasons why leave to appeal must be granted. They cite,
inter alia,
the
following as special reasons:
(i)
The
first and second respondents have made an application to this court
to declare the title deed of the applicant invalid;
(ii)
There
is a debt owed to the City of Tshwane in the amount of R 391 000
since 2011. They query how the property was transferred with
such a
huge debt without a rates clearance certificate.
(iii)
The
City of Tshwane was not cited in the eviction application and it did
not make submissions. Given that the City was not cited,
the
respondents complain that they would not have alternative
accommodation.
(iv)
Renovations
were made to the property.
(v)
There
are nine school children and they need to be considered before
eviction is granted, especially by a purchaser who finds it
difficult
to produce proof of purchase.
5.
Purely from reading the respondents’
grounds of appeal, there is neither a prospect that another court may
come to a different
finding nor are there special circumstances that
would warrant that leave to appeal be granted.
6.
A brief background is necessary.
There is not even an opposing affidavit on file.
The papers that the respondents presented in November 2022 were not
commissioned.
Leaving aside the failure to
file commissioned papers, the respondents raised no triable issues in
their four paged opposing papers.
A cursory glance at what the
respondents call special circumstances are vague allegations
suggestive of some questioning both the
process of transfer and the
applicant’s title to the property. But these cannot be valid
defences for the respondents who,
by their own version, claim no
interest in the property.
7.
The respondents further argue that the City
of Tshwane was not cited in the main application. This is incorrect.
The respondents
themselves have altered the original heading on a
number of occasions. On the question of the nine school children, the
respondents
do not make a claim that these are their children or that
they run a shelter for the homeless or some school. They cannot even
provide details of the nine children, their origins and why they must
remain in the applicant’s property. A mere perusal of
all the
papers filed by the respondents in this matter demonstrates clearly
that their sole basis for opposing the application,
including their
filing of this application for leave to appeal, is to delay relief to
the applicant. The application for leave
to appeal has no basis in
law and it falls to be dismissed.
D.
Order
8.
The
application for leave to appeal is dismissed with costs.
NN
BAM
JUDGE OF THE HIGH
COURT,
PRETORIA
Appearances:
Applicant:
Adv
N Mhlongo
Instructed
by Aphane
Attorneys
Pretoria
Respondents:
Adv
P Moloto
A.J Masingi Attorneys
Pretoria
[1]
Superior
Courts Act 10 of 2013
.